UNITED STATES COURT OF APPEALS January 5, 2022

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

DEBORAH LAUFER,

Plaintiff - Appellant,

v. No. 21-1031

RANDALL J. LOOPER; CYNTHIA C. LOOPER, d/b/a Elk Run Inn,

Defendants - Appellees. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CV-02475-NYW) _________________________________

Thomas B. Bacon, Thomas B. Bacon Law Office, Mount Dora, Florida, for Plaintiff- Appellant.

Stephen B. Rotter (Jennifer L. Gokenbach, with him on the brief), The Workplace Counsel, Denver, Colorado, for Defendant-Appellee. _________________________________

Before TYMKOVICH, Chief Judge, HARTZ, and MATHESON, Circuit Judges. _________________________________

MATHESON, Circuit Judge. _________________________________

Deborah Laufer is qualified as disabled under the Americans with Disabilities

Act (“ADA”) and is a self-described ADA “tester.” In that capacity, she visited the Appellate Case: 21-1031 Document: 010110627575 Date Filed: 01/05/2022 Page: 2

Elk Run Inn’s online reservation system (“ORS”) to determine whether it complied

with the ADA, though she has no intention to stay there.

Ms. Laufer sued Randall and Cynthia Looper, the owners of the Elk Run Inn,

alleging that the ORS lacked information about accessibility in violation of an ADA

regulation. The district court dismissed Ms. Laufer’s complaint without prejudice for

lack of Article III standing because she failed to allege that she had suffered a

concrete and particularized injury. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

I. BACKGROUND

A. ADA Title III

Title III of the ADA “generally prohibits public accommodations from

discriminating against individuals on the basis of disability.” Levorsen v.

Octapharma Plasma, Inc., 828 F.3d 1227, 1229 (10th Cir. 2016). It provides that

“[n]o individual shall be discriminated against on the basis of disability in the full

and equal enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation by any person who owns,

leases (or leases to), or operates a place of public accommodation.” 42

U.S.C. § 12182(a).

The Department of Justice promulgated a regulation under Title III stating that

a place of public accommodation (“PPA”) operating a “place of lodging” shall, “with

respect to reservations made by any means,” “[i]dentify and describe accessible

features in the hotels and guest rooms offered through its reservations service in

2 Appellate Case: 21-1031 Document: 010110627575 Date Filed: 01/05/2022 Page: 3

enough detail to reasonably permit individuals with disabilities to assess

independently whether a given hotel or guest room meets his or her accessibility

needs.” 28 C.F.R. § 36.302(e)(1)(ii) (the “ORS Regulation”).

B. Ms. Laufer’s Allegations

Ms. Laufer, a resident of Pasco County, Florida, uses a wheelchair and

requires accommodations due to her disability. In her complaint, she described

herself as an “advocate of the rights of similarly situated disabled persons” and a

“‘tester’ for the purpose of asserting her civil rights and monitoring, ensuring, and

determining whether places of public accommodation and thei

Click Here to Read the rest of this document